Bert v. BertBert v. Bert
- Reporters:
- ,
- Before:
- MacKenzie
Plaintiff Sherry Gautz (formerly Bert) and defendant David Bert were divorced by order of the Monroe Circuit Court on July 23, *210 1982. Ms. Gautz was awarded custody of the parties’ minor daughter. David Bert was granted reasonable visitation with the child. No provision was made in the judgment of divorce for visitation by any of the child’s grandparents.
David Bert was shot and killed on December 21, 1982. On February 12, 1983, Ms. Gautz remarried and moved to Toledo, Ohio, with her daughter and new husband. Adoption proceedings were begun in Ohio. The child was legally adopted by Ms. Gautz’s new husband on December 20, 1983.
On February 15, 1983, David Bert’s mother, Mrs. Mildred Bert, filed a petition in the Monroe Circuit Court as intervening defendant in the
Bert v Bert
divorce case. In the petition Mrs. Bert sought specific visitation with her deceased son’s daughter. Jurisdiction was apparently predicated on the circuit court’s authority to issue additional orders concerning the child’s custody, maintenance and support following Ms. Gautz and Mr. Bert’s divorce.
On the basis of Mrs. Bert’s petition, Ms. Gautz and Mrs. Bert appeared before the circuit court and an investigation of the advisability of the proposed visitation was conducted by the Monroe County Friend of the Court. Despite Ms. Gautz’s objection to visitation by Mrs. Bert outside Ms. Gautz’s home, an order was entered on April 22, 1983, allowing such visitation.
Ms. Gautz did not comply with the visitation order. Upon motion by the friend of the court, a hearing was held on December 20, 1983, for Ms. Gautz to show cause why she should not be held in contempt of court. Ms. Gautz did not appear at the hearing. The circuit court authorized a bench warrant for Ms. Gautz’s arrest and order that Mrs. Bert have immediate possession of the child until further order of the court.
*211 Enforcement of the visitation order and the bench warrant was stayed as of April 17, 1985, pursuant to an agreement reached in a related federal district court action.
The validity of the trial court’s actions in regard to the petition for grandparent visitation are now before this Court on leave granted.
Ms. Gautz first argues that the Monroe Circuit Court lacked the power to enter its April, 1983, visitation order since David Bert’s death divested the court of its jurisdiction in the Bert v Bert divorce proceeding. We agree that the court improperly entered the visitation order, but for a different reason.
Jurisdiction in divorce cases is purely statutory and every power exercised by the circuit court must have its source in a statute or it does not exist.
Gray v Independent Liberty Life Ins Co,
The court shall have jurisdiction in making such order or judgment relative to the minor children of such parties as authorized in this chapter to *212 award custody of each child to 1 of the parties or a third person until each child has attained the age of 18 years. [Emphasis added.]
Thus, by statute, the Bert v Bert court remains authorized to enter orders relative to the minor child until she reaches eighteen years of age, notwithstanding the death of David Bert.
Nevertheless, under the above-quoted statutory provision, the court’s continued jurisdiction relative to matters of child custody and visitation is limited to the entry of orders "authorized in this chapter,” i.e., Chapter 552. Visitation by grandparents is
not
authorized by Chapter 552; it is authorized as part of the Child Custody Act,
We do note, however, that the circuit courts have subject matter jurisdiction to hear grandparent visitation claims pursuant to the grandparent visitation provision of the Child Custody Act,
, If, however, the natural parent of the child is deceased, a parent of the deceased person can obtain visitation by "commencing an action” whether or not a child custody dispute is pending.
Since the father of the child was deceased, Mrs. Bert could only obtain visitation in the instant case by filing a complaint and commencing an action. Mrs. Bert did not file a complaint with the court as required by § 7b. Instead, she filed a petition and attempted to "intervene” in the original divorce action. Because she did not properly follow the statutory procedure set forth in § 7b, the trial court’s consideration of her petition was improper.
Moreover, even if Mrs. Bert had filed a complaint with the Monroe Circuit Court, venue to consider the petition would not have been proper. Section 7b(3) provides that the action must be commenced "in the circuit court in the county in which the grandchild resides.”
In the present case, the child had been living in Monroe County, Michigan, but moved to Lukas County, Ohio, just prior to the filing of Mrs. Bert’s petition. Despite the relative immediacy of the child’s move to Lukas County, the child was in fact residing in that county. Because the child was not residing in Monroe County, venue would not have been proper in that county. Thus, even if Mrs. Bert had "commenced an action” by filing the petition, the petition was filed in the wrong court and should have been dismissed because of improper venue. Such an action was necessary to safeguard the child’s interests in having the action brought in the county of the child’s residence.
Whether Mrs. Bert could file an action in the child’s county of residence in Ohio is a determination which must be made pursuant to Ohio law and the provisions of the Uniform Custody Jurisdiction Act. We note, however, that Ohio law, like Michigan law, provides for grandparent visitation. Ohio Revised Code, § 3109.11.
Because the petition in the Monroe Circuit Court should have been dismissed for lack of jurisdiction in the Bert v Bert case, and the improper venue under the Child Custody Act, the grant of visitation to Mrs. Bert and subsequent order for custody of the child were invalid. Although this finding does not necessarily render the contempt citation and bench warrant issued against Ms. Gautz unenforceable, we find that under the particular circumstances of this case further enforcement would serve no legitimate purpose and should be permanently stayed.
*215
As an alternate ground for setting aside the visitation order, Ms. Gautz argues that the actions of the friend of the court in attempting to have the April, 1983, order enforced were improper. While resolution of the procedural issues makes review of the friend of the court’s actions unnecessary, we note that, under
The orders of April and December 20, 1983, are reversed. No costs to either party.