AMELIA D JOHNSON V GREGORY DARNELL WHITE
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STATE OF MICHIGAN
COURT OF APPEALS
AMELIA D. JOHNSON, a/k/a AMY JOHNSON,
and HARVEY C. JOHNSON,
FOR PUBLICATION
March 23, 2004
9:05 a.m.
Plaintiffs-Appellees,
v
Nos. 241414; 241992
Berrien Circuit Court
LC No. 2000-001368-DZ
GREGORY DARNELL WHITE,
Defendant-Appellant.
Updated Copy
June 18, 2004
Before: Smolenski, P.J., and Sawyer and Borrello, JJ.
SMOLENSKI, P.J.
Defendant violated the trial court's January 10, 2001, order granting plaintiffs
grandparenting time when he moved his children to Colorado, thus circumventing plaintiffs'
visitation. As a result, a judgment of contempt was entered against defendant. Defendant moved
to vacate the court's order regarding grandparenting time, arguing that it was void ab initio
pursuant to this Court's decision in DeRose v DeRose, 249 Mich App 388; 643 NW2d 259
(2002), which held MCL 722.27b unconstitutional. Defendant asserted that because the
grandparenting time order was void, the contempt order stemming from its violation was also
void. The trial court denied defendant's motion to vacate the grandparenting time order, stating
that the DeRose decision had no precedential value because, at the time, leave was pending
before the Michigan Supreme Court and, therefore, the decision was not final. The court also
refused to vacate the contempt judgment. Defendant appealed from both orders, and the appeals
were consolidated.
Subsequently, the trial court waived jurisdiction in this matter in order for plaintiffs to
seek enforcement of their grandparenting time in Colorado. Although this action renders the
issue of the validity of the grandparenting time order moot, we address it here because of the
significant public question it presents and the sheer certainty of this issue being raised on appeal
again. Federated Publications, Inc v City of Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002).
We hold that the DeRose decision should be given full retroactive effect and vacate the trial
court's January 10, 2001, order granting plaintiffs grandparenting time because the order is void
ab initio. We also find that the court abused its discretion in refusing to vacate the April 22,
2002, judgment of contempt because it failed to give the DeRose decision its proper precedential
effect. Accordingly, we reverse that order.
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I. The DeRose decision
In 2000, the United States Supreme Court addressed the constitutionality of the state of
Washington's third-party visitation statute in Troxel v Granville, 530 US 57; 120 S Ct 2054; 147
L Ed 2d 49 (2000). The Court found that the statute, on its face, unconstitutionally infringed on
parents' fundamental rights under the federal constitution to rear their children. Id. at 62-64. The
Troxel decision led this Court to address the constitutionality of Michigan's grandparent
visitation statute, MCL 722.27b. In DeRose, supra at 394-395, relying on the analysis in Troxel,
this Court held that "the lack of standards in the Michigan statute beyond 'the best interests of the
child,' and specifically the failure of the statute to afford any deference to the custodial parent's
decision, renders the Michigan statute unconstitutional as written." Consistent with its decision,
the Court vacated the trial court's order granting the plaintiff visitation of the minor child, but it
did not address whether its decision should be applied retroactively or have prospective
application only; an issue we decide here.1
II. Prospective versus Retroactive Application
The main issue on appeal is whether this Court's decision in DeRose, supra, should be
applied retroactively. The retroactive effect of a court's decision is a question of law that this
Court reviews de novo. Sturak v Ozomaro, 238 Mich App 549, 559; 606 NW2d 411 (1999).
As a general rule, an unconstitutional statute is void ab initio; it is void for any purpose
and is as ineffective as if it had never been enacted. Stanton v Lloyd Hammond Produce Farms,
400 Mich 135, 144-145; 253 NW2d 114 (1977). Pursuant to this rule, decisions declaring
statutes unconstitutional have been given full retroactive application. See, e.g., id. at 145; Briggs
v Campbell, Wyant & Cannon Foundry Co, 379 Mich 160; 150 NW2d 752 (1967); Horrigan v
Klock, 27 Mich App 107; 183 NW2d 386 (1970). Another general rule is that judicial decisions
are to be given complete retroactive effect. Michigan Ed Employees Mut Ins Co v Morris, 460
Mich 180, 189; 596 NW2d 142 (1999). However, these rules are not blindly followed without
concern for principles of justice and fairness. As the Court recognized in Stanton, supra at 147,
"certain factual circumstances might warrant the retroactive application of an unconstitutional
statute."
In recent decades, Michigan has adopted a flexible approach to determining whether a
decision should be applied retroactively or prospectively, which involves the threshold question
of
whether that decision is establishing a new principle of law, either by overruling
clear past precedent on which the parties have relied or by deciding an issue of
first impression where the result would have been unforeseeable to the parties. If
1
The Supreme Court affirmed the DeRose decision, 469 Mich 320; 666 NW2d 636 (2003), but
likewise did not address the issue of retroactivity.
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the decision does not announce a new principle of law, then full retroactivity is
favored. [Michigan Ed Employees, supra at 190-191.]
Where the decision does reflect a new principle of law, our Supreme Court has acknowledged
that "'resolution of the retrospective-prospective issue ultimately turns on considerations of
fairness and public policy,'" and has employed a three-part test to determine to what extent, if
any, a decision should receive retroactive application. Under this test, the Court weighs "'(1) the
purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect
of retroactivity on the administration of justice.'" Id. at 190, quoting Riley v Northland Geriatric
Ctr (After Remand), 431 Mich 632, 644-646; 433 NW2d 787 (1988).2 However, this test has not
been universally employed, and, in some cases, the second and third factors meld together
"'because the amount of past reliance will often have a profound effect upon the administration
of justice.'" Hall v Novik, 256 Mich App 387, 397 n 8; 663 NW2d 522 (2003), quoting People v
Hampton, 384 Mich 669, 677; 187 NW2d 404 (1971). Therefore, these three factors appear to
comprise a guideline test to be utilized by the courts as a decision-making aid, rather than an
affirmative test, the outcome of which would mandate the court's decision. See Sturak, supra at
561.
Recently, our Supreme Court embarked on this three-part analysis in Pohutski v City of
Allen Park, 465 Mich 675; 641 NW2d 219 (2002), when it revisited the issue whether § 7 of the
governmental tort liability act, MCL 691.1407, permitted a trespass-nuisance exception to
governmental immunity. The Court held that no such exception existed under the statute and, in
so holding, overruled Hadfield v Oakland Co Drain Comm'r, 430 Mich 139; 422 NW2d 205
(1988), and other cases to the contrary. Continuing, the Court stated, "However, because we are
mindful of the effect our holding will have on the administration of justice, we conclude that
limiting our holding to prospective application is appropriate." Pohutski, supra at 679.
In determining whether to give its decision retroactive effect, the Court first addressed the
threshold question, whether the decision established a new principle of law, and concluded, id. at
696, that "practically speaking our holding is akin to the announcement of a new rule of law,"
2
This three-part test was first enunciated by the United States Supreme Court in Linkletter v
Walker, 381 US 618, 629; 85 S Ct 1731; 14 L Ed 2d 601 (1965), a criminal case, and later
utilized in a civil case, Chevron Oil Co v Huson, 404 US 97, 106-107; 92 S Ct 349; 30 L Ed 2d
296 (1971). Our Supreme Court first adopted this test in People v Hampton, 384 Mich 669, 674;
187 NW2d 404 (1971). We note that the United States Supreme Court abandoned the three-part
test in Harper v Virginia Dep't of Taxation, 509 US 86, 97;113 S Ct 2510; 125 L Ed 2d 74
(1993), stating:
When this Court applies a rule of federal law to the parties before it, that
rule is the controlling interpretation of federal law and must be given full
retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate our announcement of the
rule.
-3-
given the Court's erroneous interpretations set forth in Hadfield, supra, and Li v Feldt (After
Remand), 434 Mich 584; 456 NW2d 55 (1990). Analyzing the issue under the three-part test, the
Pohutski Court stated:
First, we consider the purpose of the new rule set forth in this opinion: to
correct an error in the interpretation of § 7 of the governmental tort liability act.
Prospective application would further this purpose. See Riley, supra at 646.
Second, there has been extensive reliance on Hadfield's interpretation of § 7 of the
governmental tort liability act. In addition to reliance by the courts, insurance
decisions have undoubtedly been predicated upon this Court's longstanding
interpretation of § 7 under Hadfield: municipalities have been encouraged to
purchase insurance, while homeowners have been discouraged from doing the
same. Prospective application acknowledges that reliance. Third, prospective
application minimizes the effect of this decision on the administration of justice.
Consideration of recently enacted 2001 PA 222 strengthens our determination to
limit our holding to prospective application. 2001 PA 222 amends the
governmental tort liability act to provide a remedy for damages or physical
injuries caused by a sewage disposal system event. [Pohutski, supra at 697.]
The Court determined that 2001 PA 222 did not apply retroactively and considerations of justice
necessitated limiting its holding to prospective application only:
Given the absence of any language indicating retroactive effect, the fortyfive-day notice limit, and the presumption that statutes operate prospectively, we
conclude that 2001 PA 222 does not apply retroactively.
Thus, if we applied our holding in this case retroactively, the plaintiffs in
cases currently pending would not be afforded relief under Hadfield or 2001 PA
222. Rather, they would become a distinct class of litigants denied relief because
of an unfortunate circumstance of timing.
Accordingly, this decision will be applied only to cases brought on or after
April 2, 2002. In all cases currently pending, the interpretation set forth in
Hadfield will apply. [Pohutski, supra at 698-699.]
Other cases have dealt with this issue in the context of a statute's being found
unconstitutional. The difficulty in determining whether prospective or retroactive application is
appropriate was highlighted in the cases that followed this Court's decision in Crego v Coleman,
201 Mich App 443; 506 NW2d 568 (1993) (Crego I). Crego I held that § 3 of the Paternity Act,
MCL 722.713, specifically provided that the performance of a settlement agreement after
approval by the court barred "'other remedies of the mother or child for the support and
education of the child'" unless the parties provided for modification in the language of the
settlement agreement. Two years later, MCL 722.713 was declared unconstitutional because it
violated equal protection to the extent that it afforded the parties to a paternity action greater
settlement rights than were afforded parties to a divorce action with respect to the child support
issue, and to the extent that it rendered child support awards under the Paternity Act
unmodifiable while child support awards under the divorce statutes remained modifiable. Dones
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v Thomas, 210 Mich App 674, 679; 534 NW2d 221 (1995). As a result, the Legislature repealed
this statute and the plaintiff in Crego I refiled her suit seeking modification of the settlement
agreement she had entered into pursuant to § 3. Sturak, supra at 556-557. The circuit court
granted the plaintiff 's motion.
The defendant's appeal was decided by Crego v Coleman, 226 Mich App 815, 821; 573
NW2d 291 (1997) (Crego II), vacated 226 Mich App 815 (1997), in which this Court stated that,
were it not compelled by MCR 7.215(J)(1) to reverse, it would affirm and hold that MCL
722.713 was unconstitutional as violative of the equal protection guarantees of the United States
and Michigan constitutions. This Court further stated that it would give its holding only limited
retroactive effect in that it would permit the defendant and other similarly situated putative
fathers to contest the issue of paternity.
A conflict panel was convened to resolve the disagreement between the Crego I and
Crego II decision, and, affirming the holdings of Dones and Crego II, the panel determined MCL
722.713 to be unconstitutional. Crego v Coleman, 232 Mich App 284, 288; 591 NW2d 277
(1998) (Crego III). Although the majority opinion did not address the issue of retroactivity,
Chief Judge Whitbeck did in his dissent. Chief Judge Whitbeck noted that since the Paternity
Act was enacted, literally thousands of cases were brought under its provisions and that a fair
number of those cases resulted in unmodifiable child support agreements under § 3. Id. at 328.
He opined that the effect of the majority's decision was to allow these agreements to be
reopened, which could lead to the "clearing" of putative fathers of paternity by the use of modern
DNA testing, and expressed his concern that a woman then might be required to make restitution
of years of child support. Id. at 328-329.
In Sturak, supra at 552, the plaintiff filed a complaint in 1983 alleging that the defendant
was the father of the minor child. The parties submitted to blood testing and subsequently
entered into a settlement agreement, which was approved by the court in February 1985. Id.
Years later, in the wake of this Court's decision in Dones, the plaintiff moved to set aside the
settlement agreement and her motion was granted. Id. Following the defendant's failure to
submit to new blood tests, a default judgment was entered and the court ordered the defendant to
pay $93 a week in child support without credit for the money he paid pursuant to the terms of the
1985 settlement agreement. Id. at 553.
Thus, the issue in Sturak was whether the holding in Crego III should be applied
retroactively. The Court reviewed Chief Judge Whitbeck's comments in Crego III and stated that
"a retroactive application of the Crego III decision would not necessarily facilitate any of these
imagined developments." Id. at 564. However, because the minor child's right to and need for
support was primarily at issue and because complete retroactive application of Crego III to every
nonmodifiable § 3 support agreement entered since the statute's enactment in 1956 would likely
adversely affect the administration of justice, the Court limited the retroactive application of
Crego III to "settlement agreements entered before the Legislature's repeal of § 3, effective June
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1, 1997, the subjects of which have not yet reached the age at which their right to parental
support terminates."3 Id.
Subsequently, our Supreme Court concluded that the statute did not violate equal
protection guarantees, but did not address whether its decision should be applied retroactively.
Crego v Coleman, 463 Mich 248, 252; 615 NW2d 218 (2000) (Crego IV). This issue was
decided a few years later in Hall v Novik, 256 Mich App 387; 663 NW2d 522 (2003). As an
initial matter, the Hall Court concluded that Crego IV did announce a new rule of law because it
overturned Dones, supra, and the decisions that relied on that precedent. Id. at 395. In
concluding that prospective application only was appropriate, this Court relied heavily on the
reasoning in Riley, supra, a factually similar case where the issue was whether a prior Supreme
Court decision, Gusler v Fairview Tubular Products, 412 Mich 270; 315 NW2d 388 (1981),
should be applied retroactively to require recipients of worker's compensation benefits to repay
excess sums received from their employers that had been calculated using an erroneous formula.
Instead of analyzing the issue under the three-part test, the Hall Court stated:
It would be as unfair here to require that Hall reimburse Novik for
amounts paid in excess of those due under the original support order as it would
have been in Riley to require the worker's compensation benefit recipients to
make reimbursement to their employers. As has been noted, "[r]equiring . . . a
woman to make 'restitution' of years of child support payments could impose a
tremendous hardship, literally to the point of bankruptcy." Crego III, supra at
329 (Whitbeck, J., dissenting).
Further, the public policy of this state, as reflected by statute, is that
support payments once made for the care of a child are not normally "subject to
retroactive modification." MCL 552.603(2). "[T]his provision normally operates
to prevent a payer from retroactively decreasing support payments that have
already come due . . . ." Harvey v Harvey, 237 Mich App 432, 437-438; 603
NW2d 302 (1999). The purpose of this statute is that "'[t]he custodial parent, who
actually provides for the child's welfare, should be able to rely on receiving the
court-ordered amount'" until a petition for reduction has been filed. Id. at 438,
quoting House Legislative Analysis, SB 318-320, June 30, 1987. Similarly,
consistent with this statutory policy, a parent should be able to use court-ordered
support payments without fear that reimbursement will be later required following
a change in the law. [Hall, supra at 398-399.][4]
3
Retroactive application of Crego III was further limited to "situations where the potential
litigant is dissatisfied with the agreement's support provisions, has knowledge of the putative
father's continued existence and location, and believes that seeking modification of the
agreement would constitute a worthwhile endeavor." Id. at 564-565.
4
Addressing the fact that it did not specifically utilize the three-part test, the Hall Court stated:
(continued…)
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The Court realized that prospectively applying Crego IV worked a hardship on the plaintiff,
because she would no longer be entitled to higher child support payments, while simultaneously
working a hardship on the defendant because he had been erroneously required to pay these
higher amounts for a period. Yet, despite this inherent measure of unfairness, the Hall Court
recognized that "any change of law presents a difficult situation and the job of the court is to
determine the issue of prospective or retroactive application in a manner that best accommodates
the interests of all those affected by it." Id. at 399.
III. Retroactive Application of DeRose
Turning to the case before us, we find that the DeRose decision clearly established a new
principle of law by addressing for the first time the constitutionality of MCL 722.27b and
declaring the statute unconstitutional. See Hall, supra at 394-395; Sturak, supra at 561-562. We
also find that the purpose of the DeRose decision would be best served by giving it full
retroactive application. There is no doubt that grandparents play an important role in a child's
life. But grandparents do not have a fundamental right to make decisions for their grandchild.
Additionally, despite plaintiffs' reliance on the statute, and that of others similarly situated,
prospective application only of DeRose would fail to give this statement its proper import. It
was precisely "the lack of any standards in the Michigan statute beyond 'the best interests of the
child,' and specifically the failure of the statute to afford any deference to the custodial parent's
decision" that was fatal to the viability of MCL 722.27b. DeRose, supra, 249 Mich App 394395.
Moreover, unlike the child support and restitution concerns in the above cases, no such
financial concerns are involved here. The orders entered pursuant to MCL 722.27b involve only
grandparents' visitation rights. In light of our Supreme Court's affirmance of the DeRose
decision, we do not face the potential of creating additional litigation that was present in the
Pohutski, Hall, and Sturak cases. Therefore, the effect of DeRose being given full retroactive
application is only to terminate those visitation rights. And so we hold that the DeRose decision
should be applied retroactively. Accordingly, we vacate the trial court's January 10, 2001, order
granting plaintiffs grandparenting time as it is void ab initio.5
As the DeRose Court recognized, it is presumably possible for a constitutional
grandparent visitation statute to be written. In the event that the Legislature addresses the
constitutional deficiencies identified in DeRose, plaintiffs and others similarly situated would be
entitled to petition the court anew for visitation rights. However, in the meantime, we hold that
(…continued)
To the extent that analysis under the three-part test is required, we note
that Riley, supra at 646, upon which we primarily rely, did consider that test and
concluded that prospective application of the new rule at issue was appropriate.
For the same reasons in this factually similar case, we would reach that same
conclusion if we were to apply the three-part test. [Hall, supra at 397 n 8.]
5
Because the trial court lacked the authority to grant relief to plaintiffs, a remand is unnecessary.
DeRose, supra, 249 Mich App 395.
-7-
all orders based on and entered since the enactment of MCL 722.27b, effective December 17,
1982, are void ab initio and thus, are no longer to be given legal effect.
IV. The Contempt Order and the Precedential Effect of DeRose
Defendant also argues that because the order granting plaintiffs grandparenting time is
unenforceable, the trial court erred in denying his motion to vacate the April 22, 2002, contempt
judgment, which stemmed from his violation of the grandparenting time order. The trial court's
decision on a motion to set aside a prior judgment is discretionary, and will not be reversed
absent an abuse of discretion. Heugel v Heugel, 237 Mich App 471, 478; 603 NW2d 121 (1999).
The trial court's issuance of a contempt order is also reviewed for an abuse of discretion, but to
the extent that our review requires us to address questions of law, our review is de novo. In re
Contempt of Dudzinski, 257 Mich App 96, 99; 667 NW2d 68 (2003).
A trial court is empowered with the inherent right to punish all contempts of court. MCL
600.1701 et seq.; In re Contempt of United Stationers Supply Co, 239 Mich App 496, 499; 608
NW2d 105 (2000). There is no dispute that defendant violated the court's January 10, 2001,
order when he moved with his minor children to Colorado. Defendant's argument rests solely on
the contention that he should not have been held in contempt for failing to comply with an order
that was subsequently determined to be of no legal effect. However, an order of the court must
be complied with at the time it is entered even if the order is clearly incorrect, Kirby v Michigan
High School Athletic Ass'n, 459 Mich 23, 40; 585 NW2d 290 (1998), or it is set aside on appeal,
United States v United Mine Workers of America, 330 US 258, 294; 67 S Ct 677; 91 L Ed 884
(1947). As this Court stated in In re Contempt of Dudzinski, supra at 111, "A person may not
disregard a court order simply on the basis of his subjective view that the order is wrong or will
be declared invalid on appeal."
Thus, it would appear that defendant was bound to comply with the court's
grandparenting time order, notwithstanding the fact that MCL 722.27b was subsequently
declared unconstitutional. United Mine Workers, supra at 293. But the above-cited rules only
apply to "an order issued by a court with jurisdiction over the subject matter and person . . . ."
Id. On March 28, 2002, a show cause hearing was held in regard to defendant's apparent
violation of the court's January 10, 2001, order. Defendant argued that he should not be held in
contempt because the court lacked subject-matter jurisdiction over the issue pursuant to this
Court's decision in DeRose. Defendant asserted that MCR 7.215(C)(2) provided that DeRose
should be given immediate precedential effect despite the fact that an appeal was pending in the
Supreme Court.
MCR 7.215(C)(2) states:
A published opinion of the Court of Appeals has precedential effect under
the rule of stare decisis. The filing of an application for leave to appeal to the
Supreme Court or a Supreme Court order granting leave to appeal does not
diminish the precedential effect of a published opinion of the Court of Appeals.
The trial court disagreed with defendant's assertion because it believed that MCR 7.215(C)(2)
had to be read in conjunction with MCR 7.215(F)(1)(a), which states that "the Court of Appeals
-8-
judgment is effective after the expiration of the time for filing an application for leave to appeal
to the Supreme Court, or, if such an application is filed, after the disposition of the case by the
Supreme Court." Additionally, MCR 7.215(E)(1) provides that when the Court of Appeals
disposes of an appeal, its opinion is its judgment. Therefore, the trial court declined to give
DeRose precedential effect because it concluded that our opinion was not a final judgment.
However, the court's reliance on MCR 7.215(F)(1)(a) is misplaced. This court rule
pertains to the timing of when our judgment becomes final in regards to the parties to the appeal
and its enforceability with respect to the trial court that presided over the case. Under this court
rule, a timely application for leave to appeal to the Supreme Court operates as a stay of the Court
of Appeals judgment regarding its enforcement by the prevailing party to that action. See In re
JK, 468 Mich 202, 217; 661 NW2d 216 (2003). In contrast, the plain language of MCR
7.215(C)(2) provides that neither the filing of an application for leave to appeal to the Supreme
Court nor an order granting such leave diminishes the precedential effect of a published opinion
of the Court of Appeals. Where the language of the court rule is clear, we presume the drafters
intended the meaning plainly expressed. Hinkle v Wayne Co Clerk, 467 Mich 337, 340; 654
NW2d 315 (2002). Therefore, the trial court erred in determining that the DeRose decision did
not need to be given precedential effect. To conclude otherwise would render the court rule
nugatory; such a construction is to be avoided. Jerico Constr, Inc v Quadrants, Inc, 257 Mich
App 22, 32; 666 NW2d 310 (2003).
Our interpretation is supported by the effective change caused by the addition of MCR
7.215(C)(2). The effect of this Court's opinions before the amendment was set forth in People v
Phillips, 416 Mich 63; 330 NW2d 366 (1982). In that case, the prosecutor argued that the Court
of Appeals decision in People v Dunigan, 96 Mich App 577; 293 NW2d 637 (1980), was binding
precedent until the Supreme Court reversed that decision6 seven months later. The Court stated:
The prosecutor apparently misconceives the precedential status of a Court
of Appeals decision in which leave to appeal has been granted by this Court. A
timely application for leave to appeal to this Court from a decision of the Court of
Appeals effectively stays the Court of Appeals decision as a final adjudication,
see People v George, 399 Mich 638; 250 NW2d 491 (1977), and denies it
precedential force until denial of the application for leave to appeal in this Court
or some other disposition of the case is announced. An opinion of the Court of
Appeals is not its judgment. Its decision and judgment are made when the clerk
of the Court of Appeals issues the Court's judgment order and sends notice
thereof to counsel for each party under GCR 1963, 821.2.
It is only after application for leave to appeal to this Court is denied, or
dispositive action is taken effectively approving the Court of Appeals decision,
that it becomes a "final adjudication" of that Court.
6
409 Mich 765; 298 NW2d 430 (1980).
-9-
In Dunigan, our order granting the defendant's timely application for leave
to appeal, followed by our judgment reversing the Court of Appeals decision,
precluded the Court of Appeals opinion from ever having precedential effect.
[Phillips, supra at 74-75 (emphasis in original).]
In 1987, MCR 7.215(C)(2) was added, and the Staff Comment to the 1987 amendment
explicitly stated that the effect of the amendment was "a change from the prior rule as stated in
[Phillips, supra]." Construing MCR 7.215(C)(2) in Straman v Lewis, 220 Mich App 448, 451;
559 NW2d 405 (1996), this Court recognized this change, stating, "Thus, the publication of an
opinion of this Court creates binding precedent statewide, and, contrary to past practice as
reflected by [Phillips, supra], the opinion remains binding 'until such time as a decision of the
Supreme Court enters altering the lower court decision or questioning its rationale.'" Quoting 6
Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), p 315.
In this case, defendant violated the January 10, 2001, grandparenting time order in
October 2001. Three months later, on January 25, 2002, this Court issued its decision in
DeRose, which had an immediate precedential effect. At the March 28, 2002, show cause
hearing, defendant made an oral motion for relief from the grandparenting time order pursuant to
MCR 2.612(C). Defendant argued that the trial court lacked subject-matter jurisdiction over the
contempt proceedings because the Court of Appeals had declared the grandparenting time statute
unconstitutional. The court denied defendant's motion and found him in contempt.7 Giving
precedential effect to this Court's De Rose decision required that the trial court grant defendant's
motion and the court erred in failing to do so. Because the grandparenting time statute was
declared unconstitutional before the contempt judgment was entered, the court did not have
jurisdiction over the subject matter of the contempt judgment. Thus, we find that the trial court
erred in denying defendant's subsequent motion to vacate the contempt judgment. United Mine
Workers, supra at 293.8
Order granting grandparenting time vacated and order denying motion to vacate
judgment of contempt reversed.
Sawyer, J., concurred.
/s/ Michael R. Smolenski
/s/ David H. Sawyer
7
Two weeks before the show cause hearing, defendant filed a motion for summary disposition in
which he sought to vacate the grandparenting time order based on this Court's DeRose decision.
The hearing was held in April 2002. The trial court rejected defendant's argument and refused to
vacate either the grandparenting time order or the contempt judgment.
8
We note that had the court found defendant in contempt before the DeRose decision was
published, defendant would not be entitled to such relief. In re Contempt of Dudzinski, supra at
110.
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