Defendant
Plaintiffs complaint alleges that she and the parties’ two children moved out of the marital home, which is located in Genesee County, on September 9, 1994. On September 19, 1994, plaintiff signed the divorce complaint in which she stated that she had resided in Kent County for at least ten days before filing the complaint. Plaintiff’s counsel filed the complaint with the Kent Circuit Court on September 23, 1994.
On October 13, 1994, the court entered a temporary order that defendant pay $250 a week in child support, that plaintiff have custody of the two boys, and that defendant have visitation at mutually agreed-upon times. The parties agreed on minor modifications of the temporary order, and the court entered an order reflecting those changes on November 18, 1994. On March 1, 1995, defendant moved to dismiss the case. Defendant claimed that the court lacked jurisdiction under MCL 552.9(1); MSA 25.89(1), because plaintiff was not a resident of Kent County on the filing date or on any of the ten days preceding the filing. Thereafter, defendant noted his position at the opening of virtually every hearing.
Whether a court has subject-matter jurisdiction is a question of law.
Universal Am-Can Ltd v Attorney General,
In Michigan, the circuit court’s jurisdiction in a divorce action is strictly statutory.
Stamadianos v Stamadianos,
A judgment of divorce shall not be granted by a court in this state in an action of divorce unless the complainant or defendant has resided in this state for 180 days immediately preceding the filing of the complaint and, except as otherwise provided in subsection (2), the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint.
The residency and waiting period requirements of this statute are jurisdictional.
Stamadianos, supra,
pp 6-7;
Fowler v Fowler,
When used in statutes conferring jurisdiction, residence is interpreted to mean legal residence or domicile.
Id.
The issue of legal residency is principally one of intent.
Id.
Presence, abode, property ownership, and other facts axe often considered, but intent is the
key factor.
Courts are bound to take notice of the limits of their authority.
Bowie v Arder,
While the issue of defendant’s jurisdictional motion was pending, defendant argued that he was being denied visitation with the children and did not pay any child support. On the other hand, plaintiff argued that defendant could not be trusted with visitation because he was not obeying the trial court’s child support orders. Meanwhile, the child support arrearages kept climbing. On June 21, 1995, the trial court issued a bench warrant authorizing defendant’s arrest for nonpayment of child support. On October 16, 1995, the date scheduled for the evidentiary hearing regarding defendant’s motion, defendant did not appear. The court stated that a party in contempt of court for failure to obey that court’s orders is not in a position to argue through local counsel that the case should be dismissed. The court also noted that a party in contempt was required to purge himself of the contempt before being heard by the court. The court never held the evidentiary hearing. Rather, plaintiff was sworn in and testified that she had resided in Kent County for ten days before filing for divorce. The court then entered a default judgment of divorce.
It is true that a circuit court has the authority to order a party to pay child support during the pendency of a divorce action. MCL 552.15; MSA 25.95. However, the child support arrearages were based on the trial court’s temporary orders requiring child support. If the trial court lacked jurisdiction over this case, then it lacked authority to enforce
any
action with respect to the case, including the support orders.
Bowie, supra,
p 56;
Fox, supra,
p 242;
Luscombe v Shedd’s Food Products Corp,
By never resolving the jurisdictional dispute here, the trial court failed to take notice of the limits of its authority.
Bowie, supra,
p 56;
Fox, supra,
p 242;
Erwin, supra,
p 65. In addition, the trial court erred in conditioning defendant’s ability to contest the jurisdictional basis of the case on defendant’s purging of the contempt order. This was erroneous for two reasons. First, a jurisdictional challenge can be raised at any time.
Lehman, supra,
p 105. Second, if necessary,
a trial court must resolve a jurisdictional dispute on its own motion.
Bowie, supra,
p 56. It bears mention that, to the extent that the trial court urged the parties to agree to a resolution of the dispute, jurisdiction cannot be conferred by waiver or consent of the parties.
In re Return of Forfeited Goods,
On remand, we direct the trial court to conduct an evidentiary hearing to determine whether plaintiff resided in Kent County for the ten days immediately preceding the filing of her complaint. MCL 552.9; MSA 25.89. This hearing will necessarily include an inquiry into whether plaintiff intended
Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.