Defendant Ronald Steen was married to Karen Steen, daughter of the plaintiffs.
We have essentially three issues before us on appeal. First, plaintiffs claim that defendant’s motion for a change of venue was not timely raised. We disagree. The defendant filed his motion for a change of venue at the time he filed his answer, and GCR 1963, 401 expressly provides that: "Motion for change of venue shall be filed before or at the time the defendant hies an answer” (Emphasis supplied.)
Second, plaintiffs argue that since the Macomb County Circuit Court
could
have jurisdiction to hear this child custody matter, once the defendant appeared before that court he subjected himself to its jurisdiction and thus it had full discretion to decide if venue was proper or not. This claim is without merit. Once a timely motion is made GCR
Third, defendant claims that the trial court erred in denying his request for a change of venue. Under the Child Custody Act of 1970, MCLA 722.26; MSA 25.312(6), the proper venue in a child custody action lies in "the circuit court of the county where the child resides or may be found by complaint or complaint and motion for order to show cause”. (Emphasis supplied.) From this statute defendant’s argument proceeds thusly:
(1) The proper time to determine venue is at the institution of the action. DesJardin, supra.
(2) On the date of the institution of this custody action, March 14, 1973, David Steen could be "found” in Wayne County’s Children’s Hospital.
(3) On March 14, 1973, the "residence” or "domicile” (the terms are synonymous and interchangeable, Gl
uc v Klein,
Therefore, venue should be set in Wayne County.
We have assumed solely for the purposes of this opinion the validity of propositions (1) and (2) of defendant’s argument and proceed to dispose of this case through discussion of only proposition (3).
Defendant asserts that on the death of a parent with custody of a child the domicile of the child immediately becomes that of the surviving parent. While there is outstate authority, cited above, for this premise, there is none in Michigan. The out-state decisions are apparently grounded on the desire to give the surviving parent every advantage possible in custody proceedings and on the notion that since a minor is incapable of choosing his own legal domicile or residence, it must be determined by looking to that of his surviving parent. The instant action is brought under the Child Custody Act of 1970, under which the best interests of the child are paramount. MCLA 722.25; MSA 25.312(5);
Ostergren v Ostergren,
Support for this ruling is found in the very language of the venire statute in issue. The Legislature did not use the word "residence” or "domicile” but "resides”. That the term "resides” may have a different connotation than the term "residence” is without doubt.
"It has been said that the word 'reside’ has two distinct meanings, and that it may be employed in two senses, and, in what is sometimes referred to as the strict, legal, or technical sense, it means legal domicile as distinguished from mere residence or place of actual abode. In this sense the word 'reside’ means legal residence; legal domicile, or the home of a person in contemplation of law; the place where a person is deemed in law to live, which may not always be the place of his actual dwelling, and thus the term may mean something different from being bodily present, and does not necessarily refer to the place of actual abode. When employed in this sense, the word 'reside’ includes not only physical presence in a place, but also the accompanying intent of choosing that place as a permanent residence.
We believe that the Legislature intended the word "reside” to be used in its "popular sense” when used in the venue statute here in issue. For if the primary goal in custody actions is service of the best interests of the child, it is only logical that the law insist that custody suits be litigated either where the child can be found or actually lives (resides), since either locus will generally mean the least disruption of the child’s personal life over the duration of the suit.
Defendant admitted in his brief on appeal that up to the time of his former wife’s death, the child David Allen Steen lived with Karen Steen in Macomb County. Defendant did not argue either before the trial judge or this Court in his brief on appeal that the child’s actual residence had been changed from Macomb County. Thus, we find that the trial judge did not err in finding that venue in this dispute could properly be found in Macomb County.
Affirmed. Costs to await the final outcome.