DRAYTON O HARRIS V JESSICA L HARRIS
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STATE OF MICHIGAN
COURT OF APPEALS
DRAYTON O. HARRIS,
UNPUBLISHED
September 3, 2009
Plaintiff-Appellant,
v
No. 290168
Wayne Circuit Court
Family Division
LC No. 08-125066-DM
JESSICA L. HARRIS,
Defendant-Appellee.
Before: Saad, C.J., and Whitbeck and Zahra, JJ.
PER CURIAM.
Plaintiff appeals from the trial court’s order that dismissed his complaint for divorce from
defendant for lack of jurisdiction. On appeal, plaintiff argues that the trial court erred when it
awarded defendant $500 in attorney fees.1 We agree and vacate the trial court’s grant of attorney
fees.
Plaintiff argues that the trial court erred when it awarded attorney fees on the basis of the
fact that there was an existing divorce and custody proceeding in Texas. A trial court’s decision
regarding attorney fees is generally reviewed for an abuse of discretion. In re Temple, 278 Mich
App 122, 128; 748 NW2d 265 (2008); Hines v Volkswagen of Am, Inc, 265 Mich App 432, 438;
695 NW2d 84 (2005). Underlying findings of fact are reviewed for clear error. Temple, supra at
128. Questions of law necessary to this determination are reviewed de novo. Id.
Defendant requested attorney fees under MCR 2.114(E) for misrepresentations made to
the trial court in plaintiff’s complaint. MCR 2.114(D) provides that an attorney or party certifies,
with her signature on a filing or affidavit:
(1) he or she has read the document;
1
Plaintiff originally appealed the trial court’s grant of defendant’s motion on the merits, but
voluntarily withdrew his other issues from consideration by this Court.
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(2) to the best of his or her knowledge, information, and belief formed after
reasonable inquiry, the document is well grounded in fact and is warranted by
existing law or a good-faith argument for the extension, modification, or reversal
of existing law; and
(3) the document is not interposed for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of litigation.
The trial court did not specify which section supported its award of attorney fees, but the court
chastised plaintiff’s attorney for failing to do the requisite “homework” to apprise herself of the
Texas proceeding before filing plaintiff’s divorce complaint and recognizing that a Michigan
court could not properly assert jurisdiction in this matter.2 Thus, we can conclude that the award
was predicated on MCR 2.114(D)(2).
MCL 722.1201, in the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), MCL 722.1101 et seq., provides that a trial court has jurisdiction to make an initial
child custody determination where:
(a) [Michigan] is “the home state of the child on the date of the commencement of
the proceeding, or was the home state of the child within six months before the
commencement of the proceeding and the child is absent from this state but a
parent or person acting as a parent continues to live in this state.
(b) A court of another state does not have jurisdiction under subdivision (a), or a
court of the home state of the child has declined to exercise jurisdiction on the
ground that this state is the more appropriate forum . . .
***
(c) All courts having jurisdiction under subdivision (a) or (b) have declined to
exercise jurisdiction on the grounds that a court of this state is the more
appropriate forum to determine the custody of the child . . .
(d) No court of another state would have jurisdiction under subdivision (a), (b), or
(c).
The trial court dismissed the child custody portion of plaintiff’s divorce complaint on the
grounds Texas had already acquired jurisdiction over the custody determination. Plaintiff argued
2
Plaintiff’s claim was dismissed for lack of jurisdiction on two bases: he failed to satisfy the
residency requirement of MCL 552.9, and there was no basis for taking jurisdiction over the
custody determination under MCL 722.1201. Based on the court’s statement that plaintiff’s
attorney should have known about the proceedings in Texas (which precludes jurisdiction in
Michigan), we conclude that the award of attorney fees was predicated solely on the custody
portion of the divorce complaint rather than the residency requirement for filing the complaint.
MCL 722.1201(b).
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that jurisdiction would nevertheless be proper under the emergency exception of MCL
722.1204(1):
A court of this state has temporary emergency jurisdiction if the child is present in
this state and the child has been abandoned or it is necessary in an emergency to
protect the child because the child, or a sibling or parent of the child, is subjected
to or threatened with mistreatment or abuse.
MCL 722.1201(1) expressly sanctions this temporary exception.
defendant’s behavior was a danger to the children.
Plaintiff contended that
The trial court apparently awarded defendant attorney fees of $500 on the basis that he
should have known there was an existing Texas custody proceeding, if he and his attorney had
done their “homework.” At the trial court’s hearing on the motion, plaintiff’s attorney stated that
plaintiff was under the impression that defendant was in agreement regarding Michigan
jurisdiction when the complaint was filed. The trial court asked defendant’s attorney if she
contacted plaintiff’s attorney before filing the motion to dismiss; defendant’s attorney could not
verify whether her office had done so. The trial court concluded, “Nonetheless, I think the
homework should have been done here.” No evidence—documentary or testimonial—of any of
these interactions, or the filing in Texas, was ever introduced into the trial court record.
Plaintiff’s attorney offered to have plaintiff testify at the hearing; the court declined.
We conclude that the trial court clearly erred when it decided that plaintiff or plaintiff’s
attorney knew or should have known of a pending custody proceeding in Texas without any
evidence to support the conclusion. Temple, supra at 128. Further, plaintiff argued in the
alternative that jurisdiction would be appropriate under MCL 722.1204, even if it were not
appropriate under MCL 722.1201. There was similarly no evidence presented on this issue.
This is a valid exception to the residency requirements of MCL 722.1201(1).
Thus, we find that the trial court made an error of law to the extent that it ruled that
plaintiff’s claims were not warranted by existing law or based on plaintiff’s reasonable belief.
MCR 2.114(D)(2). Accordingly, the trial court abused its discretion by awarding defendant
attorney fees in the absence of evidence upon which to conclude that plaintiff’s claims were
unfounded in fact or law.
Vacated in part, affirmed in part.
/s/ Henry William Saad
/s/ William C. Whitbeck
/s/ Brian K. Zahra
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