TRUDY JO SIMCOX V BLAIR RICHARD SIMCOX
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STATE OF MICHIGAN
COURT OF APPEALS
TRUDY JO SIMCOX,
UNPUBLISHED
June 23, 2009
Plaintiff-Appellant,
v
No. 284287
Genesee Circuit Court
LC No. 07-277268-DM
BLAIR RICHARD SIMCOX, JR.,
Defendant-Appellee.
Before: Murphy, P.J., and Sawyer and Murray, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order dismissing plaintiff’s complaint for
divorce because a default divorce decree had already been entered by a Texas court. We reverse
and remand for further proceedings.
Plaintiff and defendant were married in Michigan on May 24, 1991. They have one child
together, who was born on December 28, 1994. On July 3, 2007, defendant filed a petition for
divorce in Texas, alleging that he had been domiciled in Texas and had been a resident of Dallas
County for at least six months and 90 days, respectively. He alleged that plaintiff was not a
resident of Texas, but that Texas was the “last state in which marital residence between
Petitioner and Respondent occurred, and this suit is filed before the second anniversary of the
date on which marital residence ended.” Plaintiff acknowledges that she was served with a copy
of the Texas complaint for divorce on July 30, 2007. She never responded or appeared in the
Texas action, and a default judgment of divorce was entered on September 18, 2007.
In the meantime, on August 31, 2007, plaintiff filed a complaint for divorce in Michigan.
She alleged that she had been a resident of Michigan and Genesee County for at least 180 days
and ten days, respectively, and that defendant resided in Texas. Plaintiff alleged that the parties
separated on or about October 23, 2006, and that their child “presently reside[d]” with her in
Michigan. She did not reference the Texas action.
The Texas default judgment appointed both parents as “Joint Managing Conservators” of
the child. Plaintiff was given the “exclusive right to designate the primary residence of the child
without regard to geographic location.” Defendant was ordered to pay child support. The decree
also ordered the “Sale of Residence” in Michigan, at a mutually agreed price, with the net sales
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proceeds to be divided equally. The decree also divided the parties’ personal property and
retirement accounts.
After defendant was served with the summons and complaint in this action, he moved to
dismiss it and subsequently filed a motion for summary disposition pursuant to MCR
2.116(C)(6) and (7), arguing that another action had been initiated between the same parties
involving the same claims and that plaintiff’s action was barred by res judicata. Defendant did
not attach any documentary evidence to the summary disposition motion and brief1 and stayed
away from any discussion regarding where plaintiff and the child resided before and at the time
of the Texas proceedings. In her response, plaintiff was adamant that neither she nor the child
had ever resided in Texas. Plaintiff submitted school records which indicated that the child had
been a student in the Goodrich (Michigan) Area School District since Kindergarten 2000 up until
the current date of November 13, 2007. We would also note that defendant, at oral argument
before this panel, conceded that Michigan, and not Texas, was the “home state” of the child,
which terminology we will address below. Plaintiff also submitted a 2006 federal tax return
document, executed by both parties on March 6, 2007, which indicated that the parties’ home
address was in Goodrich, Michigan. As indicated above, the Texas petition for divorce was filed
on July 3, 2007, which date was approximately four months after defendant signed the tax
document, yet in the Texas petition, defendant alleged that he had “been a domiciliary of Texas
for the preceding six-month period[.]” Defendant presented no evidence showing that he was
actually domiciled in Texas for the six-month period as claimed; however, in plaintiff’s appellate
brief, she states that defendant left his employment in Michigan in October 2006 and relocated to
Texas in order to take a job in that state. Plaintiff’s brief indicates that defendant has remained
in Texas ever since October 2006. At the hearing on defendant’s motion for summary
disposition, the trial court repeatedly questioned plaintiff’s counsel about her failure to take any
action in the Texas proceedings. The trial court then dismissed plaintiff’s action, explaining:
I read the law. I don’t know of anyway [sic] that I can continue to have
jurisdiction. . . . And if that court [in Texas] sets aside the judgment down there,
I’ll be glad to hear it. But I – at this point I have to dismiss it.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004).
In Blackburne & Brown Mortgage Co v Ziomek, 264 Mich App 615, 620-621; 692 NW2d
388 (2004), this Court, reviewing the Uniform Enforcement of Foreign Judgments Act (UEFJA),
MCL 691.1171 et seq., and the Full Faith and Credit Clause of the United States Constitution,
US Const, art IV, § 1, stated:
1
Defendant was not required to do so given that the motion was brought under MCR
2.116(C)(6) and (7). MCR 2.116(G).
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A "foreign judgment" is "any judgment . . . of a court of the United States
or of any other court that is entitled to full faith and credit in this state." MCL
691.1172. "The Full Faith and Credit Clause requires that a foreign judgment be
given the same effect that it has in the state of its rendition." Jones v State Farm
Mut Automobile Ins Co, 202 Mich App 393, 406; 509 NW2d 829 (1993).
Although the Full Faith and Credit Clause requires recognition of the judgments
of sister states, "collateral attack may be made in the courts of this [s]tate by
showing that the judgment sought to be enforced was void for want of jurisdiction
in the court which issued it." Delph v Smith, 354 Mich 12, 16; 91 NW2d 854
(1958), quoting Johnson v DiGiovanni, 347 Mich 118, 126; 78 NW2d 560 (1956).
“The Due Process Clause of the Fourteenth Amendment limits the
jurisdiction of state courts to enter judgments affecting the rights or interests of
nonresident defendants. Kulko v California Superior Court, 436 US 84, 91; 98 S
Ct 1690; 56 L Ed 2d 132 (1978). As a result, a valid judgment affecting a
nonresident's rights or interests may only be entered by a court having personal
jurisdiction over that defendant. Int'l Shoe Co v Washington, 326 US 310, 319;
66 S Ct 154; 90 L Ed 2d 95 (1945).” . . .
The United States Constitution does not compel Michigan courts to give a
foreign judgment full faith and credit when the jurisdiction of the foreign court
has been successfully attacked. California v Max Larsen, Inc, 31 Mich App 594,
597-598; 187 NW2d 911 (1971). Thus, to be enforceable under the UEFJA, the
foreign judgment must have been entered by a court with jurisdiction over the
parties and the subject matter. [Alteration in original.]
In Nash v Salter, 280 Mich App 104, 119-120; 760 NW2d 612 (2008), this Court echoed
the sentiments enunciated in Blackburne, stating:
Although the Full Faith and Credit Clause . . . requires recognition of
sister-state judgments, the constitution does not compel Michigan courts to
recognize such judgments where the issuing court lacked jurisdiction over the
subject matter or the parties. Blackburne, supra at 620-621; 28 USC 1738A(a)
and (c). “[C]ollateral attack may be made in the courts of this state by showing
that the judgment sought to be enforced was void for want of jurisdiction in the
court which issued it.” Blackburne, supra at 620-621 (quotation marks and
citation omitted). Thus, if plaintiffs can demonstrate that the Texas court lacked
personal or subject-matter jurisdiction over this matter, its child-custody order is
not entitled to full faith and credit by the courts of this state.
Accordingly, the trial court here was not required to abide by the Texas divorce judgment
if Texas did not have personal or subject-matter jurisdiction to enter the judgment, and collateral
attack of the Texas judgment can be made in this state. Although defendant did not technically
seek to enforce the Texas divorce judgment in Michigan and, allegedly, it has not been filed with
a Michigan court, defendant sought to use the judgment as the underlying basis for his res
judicata argument in favor of summary disposition. In responding to defendant’s motion for
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summary disposition, plaintiff was effectively collaterally attacking the Texas judgment on the
ground that the Texas court lacked jurisdiction. The trial court erred in dismissing the case
without any consideration of the Texas court's jurisdictional reach. Moreover, res judicata
generally requires, in part, a prior final decision by a court of competent jurisdiction. Jones v
Chambers, 353 Mich 674, 680; 91 NW2d 889 (1958); Harvey v Harvey, 237 Mich App 432,
436-437; 603 NW2d 302 (1999); Wayne Co v Detroit, 233 Mich App 275, 277; 590 NW2d 619
(1998); In re Cook Estate, 155 Mich App 604, 610; 400 NW2d 695 (1986).
Tex Fam Code Ann § 6.301 provides:
A suit for divorce may not be maintained in [Texas] unless at the time the
suit is filed either the petitioner or the respondent has been:
(1) a domiciliary of this state for the preceding six-month period; and
(2) a resident of the county in which the suit is filed for the preceding 90day period.
However, “[t]he provisions of the residency statute are not jurisdictional, but rather
provide the necessary qualifications for bringing an action for divorce.” Stallworth v Stallworth,
201 SW3d 338, 345 (Tex App, 2006). Further, plaintiff apparently concedes that defendant has
resided in Texas since October 2006. Tex Fam Code Ann § 6.305 provides:
(a) If the petitioner in a suit for dissolution of a marriage is a resident or a
domiciliary of this state at the time the suit for dissolution is filed, the court may
exercise personal jurisdiction over the respondent or over the respondent's
personal representative although the respondent is not a resident of this state if:
(1) this state is the last marital residence of the petitioner and the
respondent and the suit is filed before the second anniversary of the date on which
marital residence ended; or
(2) there is any basis consistent with the constitutions of this state and the
United States for the exercise of the personal jurisdiction.
While it would appear that there was never a marital residence in Texas and that plaintiff
never lived in nor had meaningful personal contacts with the state of Texas, the record is not
sufficiently developed to properly determine whether Tex Fam Code Ann § 6.305 was satisfied
or unsatisfied. The income tax documents, as well as the Texas divorce documents, do show that
there was marital residency in Michigan; however, it is within the realm of possibilities that
marital residency was later established in Texas. Although this possibility seems doubtful,
considering the record and lack of argument by defendant, there needs to be evidence presented
on the issue, if only a simple, uncontroverted affidavit. Furthermore, and aside from the question
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of where the last marital residence was established, the Texas statute also requires contemplation
of potential jurisdictional reach under constitutional provisions and law, and evidence is again
lacking in this regard.2
If on remand the trial court determines that the Texas court lacked jurisdiction under
Texas and federal constitutional law, plaintiff’s Michigan divorce proceedings can continue.3
But even if the trial court finds that the Texas court had jurisdiction relative to divorce matters in
general concerning plaintiff, the trial court shall nonetheless proceed on child custody matters
pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCL
722.1101 et seq. Both Texas and Michigan have adopted the UCCJEA. See Hart v Kozik, 242
SW3d 102, 106 (Tex App, 2007).
Under the UCCJEA, unless an emergency situation is involved, a court of a particular
state has jurisdiction to make an initial child-custody determination only where, with some
qualifications, the state is or was recently the home state of the child, where no other state has
jurisdiction, or where another state has but declines jurisdiction. MCL 722.1201(1); Tex Fam
Code Ann § 152.201(a). "Home state" is defined as "the state in which a child lived with a
parent or a person acting as a parent for at least 6 consecutive months immediately before the
commencement of a child-custody proceeding." MCL 722.1102(g); Tex Fam Code Ann
§ 152.102(7). Except in an emergency situation, "a court of this state may not exercise its
jurisdiction . . . if, at the time of the commencement of the proceeding, a child-custody
proceeding has been commenced in a court of another state having jurisdiction substantially in
conformity with [the UCCJEA.]" MCL 722.1206(1); Tex Fam Code Ann § 152.206(a). In a
similar vein, MCL 722.1303(1) provides:
A court of this state shall recognize and enforce a child-custody
determination of a court of another state if the latter court exercised jurisdiction
that was in substantial conformity with this act or the child-custody determination
was made under factual circumstances meeting the jurisdictional standards of this
act and the child-custody determination has not been modified in accordance with
this act. [See also Tex Fam Code Ann § 152.303(a).]
2
Plaintiff’s contention that res judicata does not apply because a default and not a litigated
judgment was entered in Texas lacks merit and finds no support under Texas or Michigan law.
Cadle Co v Bray, 264 SW3d 205, 214 (Tex App, 2008); Schwartz v City of Flint, 187 Mich App
191, 194; 466 NW2d 357 (1991).
3
On appeal, we agree with plaintiff that MCR 2.116(C)(6) was not applicable because the Texas
action was not pending at the time the trial court decided defendant’s motion for summary
disposition. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999).
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The question thus becomes whether the Texas court exercised jurisdiction that was in
substantial conformity with the UCCJEA. The record establishes, without dispute, that Texas
was never the "home state" of the child. The record, and lack of argument to the contrary,
supports a conclusion that Michigan was and is the "home state" of the child and that a Michigan
court has never "declined" jurisdiction. At oral argument, defendant conceded that Michigan,
not Texas, was the child's "home state" and that he had no objection to a Michigan court
addressing child custody matters. On the basis of the record and given defendant's concessions,
we reverse the trial court and hold that child custody matters shall proceed in the Michigan court,
just as if the Texas court, which lacked jurisdiction under the UCCJEA, had never ruled on
custody.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Christopher M. Murray
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