Safdar v. Aziz (Opinion on Application - Partial Affirm / Reverse)Annotate this Case
A trial court granted Zaid Safdar a divorce from Donya Aziz. The judgment provided the parties would hare joint legal custody of their minor child and that defendant would have sole physical custody of the child. The wife appealed the court’s denial of her motion for attorney fees in relation to the judgment. While that appeal was pending with the Court of Appeals, the wife moved the trial court for a change of domicile. The trial court denied the motion, reasoning that under MCR 7.208(A), it lacked the authority to modify the custody order while defendant’s appeal of the attorney-fee award was pending in the Court of Appeals. The court rejected the wife's reliance on Lemmen v Lemmen, 481 Mich 164 (2008), which held that under MCL 552.17(1) and MCR 7.208(A)(4), a trial court may modify an order or judgment concerning child support or spousal support after a claim of appeal is filed or leave to appeal is granted. The wife appealed the denial of her d for leave to appeal in the Court of Appeals, which granted the application. The Court of Appeals reversed in a per curiam opinion, holding that Lemmen also applied to judgments concerning the care and custody of children. The husband appealed. The Michigan Supreme Court held that MCL 722.27(1) authorized the continuing jurisdiction of a circuit court to modify or amend its previous judgments or orders and was an exception to MCR 7.208(A) “otherwise provided by law.” Accordingly, the Supreme Court vacated the Court of Appeals decision to the extent it derived jurisdiction from MCL 552.17, affirmed the result reached, and remanded to the trial court for further proceedings.