LETICIA N H LYDE V AVERY D LYDE
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STATE OF MICHIGAN
COURT OF APPEALS
LETICIA N. H. LYDE,
UNPUBLISHED
March 17, 2011
Plaintiff-Appellee,
v
No. 294607
Wayne Circuit Court
LC No. 08-110807-DM
AVERY D. LYDE,
Defendant-Appellant.
Before: SHAPIRO, P.J., and HOEKSTRA and TALBOT, JJ.
SHAPIRO, P.J. (concurring).
I agree with the majority’s decision to affirm, but write separately to address the issue of
notice.
Defendant has never alleged a defect in the service of the summons and complaint and
certainly acted with awareness of the proceedings. Indeed, defendant’s challenge to jurisdiction
acknowledged both plaintiff’s right to seek a divorce “as a Michigan resident” and that their
minor child’s home state was Michigan under the Uniform Child Custody Jurisdiction Act
(UCCJA). Defendant’s sole argument on appeal for setting aside the default judgment is that he
“did not receive proper notice of the motion for entry of default judgment,” thereby precluding
him from the opportunity to defend his interests. The record reveals otherwise.
On September 30, 2008, plaintiff’s counsel filed a proof of service certifying that copies
of the motion for entry of judgment and motion to waive six-month waiting period, as well as the
re-notice of hearing, scheduling the motion hearing for October 20, 2008, were mailed to
defendant on September 22, 2008. The address on the proof of service shows the proper spelling
for defendant’s street address as well as the correct zip code, and is the same address listed in the
judgment of divorce, which defendant concedes on appeal is “the correct address.” Because
service is complete upon mailing, MCR 2.107(C)((3), and mailing creates a presumption1 that
1
Although this presumption may be rebutted, defendant made no attempt to do so before the trial
court. Defendant’s attempt to do so now, by filing an affidavit with this Court, is an improper
expansion of the record. See Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d
-1-
the documents were received, see Crawford v Michigan, 208 Mich App 117, 121; 527 NW2d 30
(1994), plaintiff provided defendant with 30 days’ notice—substantially more than the nine days
required under MCR 2.119(C). I conclude that plaintiff did all that was required under the rules
to provide notice to defendant.
/s/ Douglas B. Shapiro
783 (2002) (“This Court’s review is limited to the record established by the trial court, and a
party may not expand the record on appeal.”). Even if I were to consider this evidence, I would
conclude that defendant’s bare allegation that the motion and notice of hearing were not
received—although they were mailed to the correct address, which was the same address to
which other documents were mailed and received—seems entirely too convenient and selfserving, and lacks credibility.
-2-
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